translated by G.F. Townsend
The Wolf and the Lamb
WOLF, meeting with a Lamb astray from the fold, resolved not to lay violent hands on him, but to find some plea to justify to the Lamb the Wolf's right to eat him. He thus addressed him: "Sirrah, last year you grossly insulted me." "Indeed," bleated the Lamb in a mournful tone of voice, "I was not then born." Then said the Wolf, "You feed in my pasture." "No, good sir," replied the Lamb, "I have not yet tasted grass." Again said the Wolf, "You drink of my well." "No," exclaimed the Lamb, "I never yet drank water, for as yet my mother's milk is both food and drink to me." Upon which the Wolf seized him and ate him up, saying, "Well! I won't remain supperless, even though you refute every one of my imputations."
The tyrant will always find a pretext for his tyranny.
Judge: Torture No Grounds To Dismiss Indictment
A Guantanamo Bay detainee brought to the United States for trial on charges he helped the bombing of two U.S. embassies in Africa while he was an aide to Osama bin Laden cannot use allegations of torture by the CIA to dismiss the indictment, a judge said Monday.
U.S. District Judge Lewis A. Kaplan made the ruling in Manhattan after months of consideration of documents, much of their contents redacted, that were submitted by attorneys for Ahmed Khalfan Ghailani and the government.
Kaplan said that Ghailani might be able to sue the government for civil damages or seek criminal prosecution of those who abused him if he can prove his rights were violated by torture, but that he cannot eliminate an indictment charging him in the August 1998 bombings of two U.S. embassies.
The ruling by Kaplan could set a precedent if other Guantanamo detainees are brought to the United States for trials in the civilian court system. Some of them also allege they were tortured. The judge said there were precedents set by other court cases for his findings.
He said a defendant would have to prove the government could win a conviction only by using information gained through torture for him to win dismissal of the indictment.
The judge noted that 224 people, including 12 Americans, died in the attacks on the embassies in Tanzania and Kenya in August 1998. Already, four others are serving life sentences after a 2001 U.S. trial.
Ghailani was interrogated at a secret CIA-run camp abroad after his July 2004 arrest. He was later sent to Guantanamo Bay. Last June, he became the first detainee to be brought to the United States for trial in a civilian court.
Steve Zissou, a lawyer for Ghailani, declined to comment.
Ghailani was accused by the government of being a bomb maker, document forger and aide to bin Laden, who is also charged in the indictment. Ghailani has pleaded not guilty and has denied knowing that the TNT and oxygen tanks he delivered would be used to make a bomb.
Ghailani's lawyers have said that after his arrest he was subjected to enhanced interrogation for 14 hours over five days. The CIA, as part of its enhanced interrogation program after the Sept. 11 terrorist attacks, at one time used 10 harsh methods, including waterboarding, a form of simulated drowning.
Related NPR Stories
U.S. Won't Seek Death Penalty For Ghailani Oct. 6, 2009
Guantanamo Detainee Trial May Be Litmus Test June 16, 2009
Published on The New Republic (http://www.tnr.com)
Blank Slate
There’s a lot we don’t know about Elena Kagan—because she’s never told us.
- Paul Campos
- May 8, 2010 | 12:00 am
Imagine a candidate for the U.S. Senate who has never taken a public stand on almost any policy issue. Imagine that her campaign consists of asking people for their support because, according to friends and colleagues, the candidate is smart, fair, and good to others. When her friends are asked what her views are on various political matters, they reply that they don't know—but that they're confident she'd make an excellent senator.
This bizarre hypothetical closely resembles the actual campaign to put Elena Kagan on the Supreme Court. (The White House will reportedly announce her nomination on Monday.) Of course, a Supreme Court justice is not a conventional politician in the way a senator is, but being a justice involves making often controversial judgments about the law, and these judgments are unavoidably political. Unfortunately, nobody seems to know what Kagan's views are on most political issues, nor does anyone know what she believes about how judges ought to interpret the Constitution, how much deference courts should give to Congress and state legislatures, and what role the judiciary should play in checking the powers of the executive branch. We don't know because she hasn't told us. Indeed, Tom Goldstein, a Washington lawyer and publisher of SCOTUSblog, describes Kagan as "extraordinarily—almost artistically—careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."
Consequently, the support for Kagan's nomination has been based not on her legal views, but almost entirely on her character. Many friends and colleagues from various stages of Kagan's career—the University of Chicago (where she received tenure in 1995), the White House (where she was associate counsel to President Clinton), Harvard Law School (which granted her tenure in 2001 and made her dean two years later), and the Department of Justice (President Obama appointed her Solicitor General)—have stepped forward to support her. They insist that, because of the sterling reputation she's earned in her various roles, Kagan will make a great judge. What's more, various groups who respect Kagan personally and professionally have projected their own views onto her "blank slate"; progressives believe she's a liberal, centrists assume she's a moderate, and conservatives say she isn't a bleeding heart.
To be sure, being respected is hardly irrelevant to serving on the Supreme Court. And we do have some very general sense of Kagan’s approach to the law: Because she has worked for two Democratic presidents and opposed Don’t Ask, Don't Tell during debates over ROTC recruitment at Harvard, it's safe to say that Kagan's politics are left-of-center. But there is a lot of intellectual space on the legal left. And, ideally, by now, we would know much more about a likely Supreme Court nominee’s legal philosophy than whether it falls, broadly speaking, on the left or the right.
Kagan has published very little: three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces. Compare this record to those of the three other law professors most commonly mentioned as potential replacements for Justice John Paul Stevens: Stanford Law professor Pamela Karlan and Harold Koh, who became Yale Law's dean in 2004, each have more than 100, and Kagan's Harvard colleague Cass Sunstein, who also works for the Obama administration, has several hundred, including more than 20 books. All three have taken stands on numerous legal and political issues, in both the academic and the popular press. All have written extensively on how, in their view, courts should engage in legal interpretation in general and constitutional interpretation in particular.
In contrast, Kagan's opinions on these matters remain unknown. A nominee, even one who has never been a judge, doesn’t have to be a graphomaniac, but Kagan's publications consist largely of cautious descriptions and categorizations of current legal doctrines. And, quite self-consciously, they lack almost any critical component. For example, the thesis of Kagan’s 1996 article “Private Speech, Public Purpose” in the University of Chicago Law Review is that the Supreme Court’s First Amendment doctrine “constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech.” She flatly refuses to assert whether this scheme correctly interprets the First Amendment or whether it is a good method for regulating speech. “I have never proposed to show,” Kagan notes, “that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does … I leave for another day the question whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance.”
Similarly, Kagan’s 2001 article “Presidential Administration,” published in the Harvard Law Review, describes how presidential oversight of federal administrative agency decision-making increased significantly during both the Reagan and Clinton administrations. Yet the article is focused almost solely on outlines of the administrative process, rather than its substance, thus sidestepping almost all potential political controversy. Kagan reaches the unobjectionable conclusion that vigorous presidential oversight is desirable to the extent that it increases the political accountability of administrative agencies and furthers regulatory effectiveness. (That Kagan's academic writings tell us so little about what we want to know when evaluating a Supreme Court nominee is especially problematic given that she hasn't published for a general audience; we can't find evidence of her views in the mainstream media, either.)
And yet, despite her largely blank record of opinion, Kagan's candidacy for the High Court has provoked almost ecstatic enthusiasm from various current and former colleagues on both sides of the political aisle. She has been praised for her "brilliance," for her "many remarkable qualities," and for being "scrupulously fair-minded" to people of various political views. Yet no one, not even her biggest admirers, can offer any real evidence for what sort of judge she would make, or which side of major legal issues she would fall on.
Recently, I asked a law professor—a former student of Kagan's and a political conservative—what she thought of Kagan's prospective nomination. After expressing warm admiration for Kagan's teaching abilities (and gratitude for the letters of recommendation Kagan wrote for her) the professor opined that, as a justice, Kagan probably “wouldn’t be political.” When I pressed her on what she meant by that, she explained that she believed that, if put on the Supreme Court, Kagan "would be a centrist." (Given the professor's own political inclinations, she clearly meant this as praise). Yet, when I asked about how she had made that judgment, the professor acknowledged that it was based on just a "gut feeling."
On the flip side, liberal law professor Walter Dellinger recently claimed in Slate that Kagan’s views on presidential power are “fundamentally progressive.” Yet the sum total of Dellinger’s evidence consists of the “Presidential Administration” article and a 2007 commencement speech in which Kagan criticized John Yoo’s torture memos. Given the uncontroversial nature of the Harvard Law Review article and the fact that the torture memos have been repudiated by the Bush administration’s own lawyers, this is pretty thin evidence for Kagan’s supposedly “progressive” inclinations.
The contrasting assumptions about Kagan's views continue to bump up against each other in media coverage of her pending nomination because we lack definitive evidence of what she really believes. Perhaps her views will become clearer during her confirmation process in the Senate, and perhaps, if confirmed, she will make an excellent justice.
But, for a president to appoint someone to a lifetime position, wouldn’t it be preferable to know what she believes on the biggest issues of the day—and how she arrived at those conclusions? If Obama does nominate Kagan, as he likely will, he will be taking a very big risk.
Paul Campos is a professor of law at the University of Colorado.
This bizarre hypothetical closely resembles the actual campaign to put Elena Kagan on the Supreme Court. (The White House will reportedly announce her nomination on Monday.) Of course, a Supreme Court justice is not a conventional politician in the way a senator is, but being a justice involves making often controversial judgments about the law, and these judgments are unavoidably political. Unfortunately, nobody seems to know what Kagan's views are on most political issues, nor does anyone know what she believes about how judges ought to interpret the Constitution, how much deference courts should give to Congress and state legislatures, and what role the judiciary should play in checking the powers of the executive branch. We don't know because she hasn't told us. Indeed, Tom Goldstein, a Washington lawyer and publisher of SCOTUSblog, describes Kagan as "extraordinarily—almost artistically—careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."
Consequently, the support for Kagan's nomination has been based not on her legal views, but almost entirely on her character. Many friends and colleagues from various stages of Kagan's career—the University of Chicago (where she received tenure in 1995), the White House (where she was associate counsel to President Clinton), Harvard Law School (which granted her tenure in 2001 and made her dean two years later), and the Department of Justice (President Obama appointed her Solicitor General)—have stepped forward to support her. They insist that, because of the sterling reputation she's earned in her various roles, Kagan will make a great judge. What's more, various groups who respect Kagan personally and professionally have projected their own views onto her "blank slate"; progressives believe she's a liberal, centrists assume she's a moderate, and conservatives say she isn't a bleeding heart.
To be sure, being respected is hardly irrelevant to serving on the Supreme Court. And we do have some very general sense of Kagan’s approach to the law: Because she has worked for two Democratic presidents and opposed Don’t Ask, Don't Tell during debates over ROTC recruitment at Harvard, it's safe to say that Kagan's politics are left-of-center. But there is a lot of intellectual space on the legal left. And, ideally, by now, we would know much more about a likely Supreme Court nominee’s legal philosophy than whether it falls, broadly speaking, on the left or the right.
Kagan has published very little: three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces. Compare this record to those of the three other law professors most commonly mentioned as potential replacements for Justice John Paul Stevens: Stanford Law professor Pamela Karlan and Harold Koh, who became Yale Law's dean in 2004, each have more than 100, and Kagan's Harvard colleague Cass Sunstein, who also works for the Obama administration, has several hundred, including more than 20 books. All three have taken stands on numerous legal and political issues, in both the academic and the popular press. All have written extensively on how, in their view, courts should engage in legal interpretation in general and constitutional interpretation in particular.
In contrast, Kagan's opinions on these matters remain unknown. A nominee, even one who has never been a judge, doesn’t have to be a graphomaniac, but Kagan's publications consist largely of cautious descriptions and categorizations of current legal doctrines. And, quite self-consciously, they lack almost any critical component. For example, the thesis of Kagan’s 1996 article “Private Speech, Public Purpose” in the University of Chicago Law Review is that the Supreme Court’s First Amendment doctrine “constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech.” She flatly refuses to assert whether this scheme correctly interprets the First Amendment or whether it is a good method for regulating speech. “I have never proposed to show,” Kagan notes, “that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does … I leave for another day the question whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance.”
Similarly, Kagan’s 2001 article “Presidential Administration,” published in the Harvard Law Review, describes how presidential oversight of federal administrative agency decision-making increased significantly during both the Reagan and Clinton administrations. Yet the article is focused almost solely on outlines of the administrative process, rather than its substance, thus sidestepping almost all potential political controversy. Kagan reaches the unobjectionable conclusion that vigorous presidential oversight is desirable to the extent that it increases the political accountability of administrative agencies and furthers regulatory effectiveness. (That Kagan's academic writings tell us so little about what we want to know when evaluating a Supreme Court nominee is especially problematic given that she hasn't published for a general audience; we can't find evidence of her views in the mainstream media, either.)
And yet, despite her largely blank record of opinion, Kagan's candidacy for the High Court has provoked almost ecstatic enthusiasm from various current and former colleagues on both sides of the political aisle. She has been praised for her "brilliance," for her "many remarkable qualities," and for being "scrupulously fair-minded" to people of various political views. Yet no one, not even her biggest admirers, can offer any real evidence for what sort of judge she would make, or which side of major legal issues she would fall on.
Recently, I asked a law professor—a former student of Kagan's and a political conservative—what she thought of Kagan's prospective nomination. After expressing warm admiration for Kagan's teaching abilities (and gratitude for the letters of recommendation Kagan wrote for her) the professor opined that, as a justice, Kagan probably “wouldn’t be political.” When I pressed her on what she meant by that, she explained that she believed that, if put on the Supreme Court, Kagan "would be a centrist." (Given the professor's own political inclinations, she clearly meant this as praise). Yet, when I asked about how she had made that judgment, the professor acknowledged that it was based on just a "gut feeling."
On the flip side, liberal law professor Walter Dellinger recently claimed in Slate that Kagan’s views on presidential power are “fundamentally progressive.” Yet the sum total of Dellinger’s evidence consists of the “Presidential Administration” article and a 2007 commencement speech in which Kagan criticized John Yoo’s torture memos. Given the uncontroversial nature of the Harvard Law Review article and the fact that the torture memos have been repudiated by the Bush administration’s own lawyers, this is pretty thin evidence for Kagan’s supposedly “progressive” inclinations.
The contrasting assumptions about Kagan's views continue to bump up against each other in media coverage of her pending nomination because we lack definitive evidence of what she really believes. Perhaps her views will become clearer during her confirmation process in the Senate, and perhaps, if confirmed, she will make an excellent justice.
But, for a president to appoint someone to a lifetime position, wouldn’t it be preferable to know what she believes on the biggest issues of the day—and how she arrived at those conclusions? If Obama does nominate Kagan, as he likely will, he will be taking a very big risk.
Paul Campos is a professor of law at the University of Colorado.
Source URL: http://www.tnr.com/article/politics/blank-slate
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| President Barack Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is sure to be front page news tomorrow. But its significance may be appreciated only after reading today’s stories about Obama’s desire for new legislation permitting federal investigators to question terrorism suspects without issuing a Miranda warning. Given Kagan’s record on executive power—and the Miranda news as the latest example of executive power claimed by this administration— we might now begin to conclude that, even with a Democrat in the White House, there will be no broad-scale limitations on presidential power anytime soon. It is time to realize that broad presidential power is a structural issue—not a Bush Republican or Obama Democratic one. If confirmed, Kagan will probably not play a role in scaling back presidential power in any meaningful way. It is certainly true that she probably won’t be as solicitous of presidential power as the Bush administration. In a speech at West Point in 2007, for example, Kagan was critical of the views of executive power expressed by the lawyers in the Bush Justice Department. But there is no indication in her background that she desires significant constraints on presidential power. And there are at least some reasons to think that things might head in the other direction. Kagan, after all, is to replace John Paul Stevens, the justice who wrote perhaps the two leading opinions —one a majority opinion, one a dissenting — calling for the limitation of executive power during the Bush administration. By far her most significant academic article is a pre-9/11 robust defense of presidential power. The article summary indicates that Kagan’s views of executive power were “broad though not unlimited.” During her confirmation hearings to be solicitor general, Kagan said that the president could indefinitely detain someone suspected of offering financial support to Al Qaeda. Given her experience in the executive branch during the Clinton administration, Kagan is likely to follow in the footsteps of past nominees with significant experience in the federal executive branch — like Justice Antonin Scalia or Chief Justice John Roberts — and be deferential to claims of presidential power. If the Kagan nomination means that the Supreme Court will not be limiting presidential power anytime soon, Obama’s recent actions suggest that he will not be limiting presidential power anytime soon either. While the administration has scaled back in substance and in rhetoric from many of the Bush administration’s more extreme positions, it has also embraced many robust claims of broad executive power. The administration has announced a modified state-secrets privilege, though it still permits the Justice Department to ask courts to dismiss many private lawsuits because they might endanger national security. The administration has advocated changes in the military commission system, but still supports using these commissions in some cases. The administration has also argued that detainees being held at the Bagram Air Force Base in Afghanistan have no habeas rights to petition for their release. The Kagan nomination, combined with the administration’s record on presidential power, could mean that the executive branch is likely to continue to increase in power – if in far smaller increments than during the Bush administration. But rather than continuing to hope for a presidential knight in shining armor to restore balance to the separation of powers, perhaps these events will now force us to consider that we should not depend on a president—or the justices a president nominates—to limit the power of the executive branch. David Fontana is associate professor of law at George Washington University Law School. | |
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